April 22, 2007 Leave a comment
I should have gotten around to posting some final thoughts on Duke Lacrosse ealier, but here they are a little late. First, I am very pleased that NC Attorney General Roy Cooper took the unusual, but very appropriate step of actually declaring the players innocent. This past Sunday's 60 Minutes had a pretty thorough overview of the case along with comments from the players and Cooper (you can still listen to the podcast). The real tragedy of this is that time and time again Mike Nifong willfully ignored the clear evidence right in front of him and kept pushing this case. Sadly, the glaring weaknesses in this case were obvious even before the players were indicted. This should just have never happened. The Raleigh News & Observer ran a great five-part series, “Rush to Judgment,” about just how wrong Nifong was on all of this. Among the most interesting commentary I have read is Dahlia Lithwick's column comparing Nifong's malfeasance to the DoJ scandal. At the heart of each is the incredible and largely unchecked power of prosecutors…
a thought worth holding onto as we reflect on the U.S. attorney purge
that's taken over the front pages of our newspapers.
easy to be distracted, even slightly amused, by the banal office
shenanigans that make up the day-to-day coverage of the scandal.
Increasingly, the Justice Department is revealed in all its wacky Dunder Mifflin glory. Alberto Gonzales is unmasked as The Office's Michael Scott?in so far over his head that he has no idea what his youthful employees are up to. With our daily focus on who was e-mailing whom and who was spending what on their fancy investitures,
it's tempting to dismiss senior Justice Department staff ranking U.S.
attorneys for their “loyalty” to the president as sophomoric. The Duke
case is a useful reminder that the little plastic game cards being
shuffled around and swapped by Kyle Sampson and Monica Goodling were,
in fact, loaded weapons.
Federal prosecutors, like state
district attorneys, have tremendous power and almost limitless
discretion to launch investigations, to subpoena, to file charges, to
question witnesses, and to drop charges when the facts don't bear them
out. And if the Duke case reminds us of anything, it's that the
innocent targets of such investigations and indictments have only one
power: to wait it all out and hope for the best…
Both the Duke case and the U.S. attorney purge confirm that there is no
such thing as law without politics or politics without law. But both
stories ought to remind us that “prosecutorial independence” isn't just
some meaningless ethical jargon or a gauzy law-school ideal. Former
Attorney General and Supreme Court Justice Robert H. Jackson gave a speech in 1940
in which he warned that “[t]he prosecutor has more control over life,
liberty, and reputation than any other person in America. His
discretion is tremendous. He can have citizens investigated and, if he
is that kind of person, he can have this done to the tune of public
statements and veiled or unveiled intimations.” Jackson added that “the
citizen's safety lies in the prosecutor who tempers zeal with human
kindness, who seeks truth and not victims, who serves the law and not
factional purposes. …”